People v. Tenorio

Decision Date01 September 1970
Docket NumberCr. 14422
Citation473 P.2d 993,89 Cal.Rptr. 249,3 Cal.3d 89
CourtCalifornia Supreme Court
Parties, 473 P.2d 993 The PEOPLE, Plaintiff and Appellant, v. Alfred TENORIO, Defendant and Respondent.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and appellant.

Molly H. Minudri, San Francisco, for defendant and respondent.

PETERS, Justice.

Defendant was convicted of possession of marijuana in violation of section 11530 of the Health and Safety Code. He admitted an eight-year-old prior conviction of possession of marijuana. Section 11530 provides no minimum term in the absence of a prior, but imposes mandatory minimum terms of two and five years for convictions with one and two or more priors, respectively. The respective maximum terms are 10 years, 20 years, and life.

The trial court dismissed the allegation of a prior conviction without the prior approval of the prosecutor, in direct violation of Health and Safety Code section 11718. That section provides that in any proceeding under the narcotics division of the Health and Safety Code (division X), 'no allegation of fact which, if admitted or found to be true, would change the penalty for the offense charged from what the penalty would be if such fact were not alleged and admitted or proved to be true may be dismissed by the court or stricken from the accusatory pleading except upon motion of the district attorney.'

The People appeal from the trial court's subsequent order granting probation.

In People v. Sidener, 58 Cal.2d 645, 25 Cal.Rptr. 697, 375 P.2d 641, a four-member majority of this court rejected an argument that section 11718 violates article VI, section 1, and article III of the California Constitution, which vest the judicial power in the judiciary and proclaim the separation of powers. If we were to follow Sidener, the order appealed from should be reversed, and the trial court directed to sentence defendant as a violator of section 11530 with one prior conviction.

The author of this opinion was a member of the Sidener majority, but has reexamined the views expressed therein. This court now concludes that Sidener must be overruled.

The majority opinion in Sidener denied that section 11718 encroached upon the constitutional province of the judiciary. The majority reasoned that since the prosecutor's common law power of nolle prosequi had existed for hundreds of years and had included the power to strike allegations that would increase punishment at the time of the adoption of the constitutional provision vesting 'judicial power' in the courts, that provision could not be given 'a meaning * * * it has never before been thought to have * * * to invalidate an act of the Legislature.' (58 Cal.2d at pp. 647--648, 25 Cal.Rptr. at p. 699, 375 P.2d at p. 643.) Noting that the forerunners of sections 1385 and 1386 (abolishing nolle prosequi and providing that prosecutors cannot abandon a prosecution except as provided in section 1385) were adopted in the first and second legislative sessions, respectively, the opinion argued the fact these sections 'were necessary to give to the courts this power traditionally vested in prosecutors demonstrates that the commonlaw rule was not abrogated by the general language of the Constitution vesting the 'judicial power' in the courts.' (Id., at p. 648, 25 Cal.Rptr. at p. 699, 375 P.2d at p. 643.) The majority's final historical argument cited Penal Code section 1099--adopted by the same Legislature which adopted sections 1385 and 1386--which provides that a prosecutor may direct that a jointly charged defendant be discharged to be a witness for the prosecution, and People v. Bruzzo, 24 Cal. 41, which held that a trial judge had no power to dismiss such a defendant at common law or under section 1099's predecessor. 'The Bruzzo case demonstrates that the power of dismissal is not vested exclusively in the courts, but may be given to the prosecutor by the Legislature.' (58 Cal.2d at pp. 648--649, 25 Cal.Rptr. at p. 699, 375 P.2d at p. 643.)

Conceding that the meaning of constitutional provisions and the scope of the judicial power 'is not found in history alone,' the majority opinion cited authorities for the propositions that prescribing punishment and defining offenses are legislative functions and that if charges have not been dismissed the court must pass sentence as prescribed by statute, and noted that prosecutors have broad discretion as to whether to prosecute an individual at all and under what provision. They urged: 'It would exalt form over substance to hold that broad constitutional principles of separation of powers and due process of law permit vesting complete discretion in the prosecutor before the case begins, but deny him all such discretion once the information is filed.' (Id., at pp. 650--651, 25 Cal.Rptr. at p. 700, 375 P.2d at p. 644.)

Finally, in concluding that section 11718 in effect provides only that a power 'that might otherwise be exercised by the Adult Authority alone shall be exercised by district attorneys,' the majority argued: 'There are innumerable facts other than the commission of the crime itself that may have far more bearing on the punishment imposed than prior convictions. If not only their existence but their effect on punishment must be determined solely by courts, the indeterminate sentence law and the legislative restrictions on the court's power to grant probation must fall. The indeterminate sentence law has been sustained, however, on the theory that a conviction carries with it judicially determined liability for the maximum sentence and that any remission from that maximum may be determined by an administrative agency (citations), subject only to limited judicial review. * * *' (Id., at p. 651, 25 Cal.Rptr. at p. 700, 375 P.2d at p. 644.)

The majority disapproved, insofar as inconsistent, People v. Burke, 47 Cal.2d 45, 301 P.2d 241, and People v. Valenti, 49 Cal.2d 199, 316 P.2d 633.

Justice Schauer's lengthy dissent--concurred in by Justices White and McComb--answered the majority's historical argument by noting that nolle prosequi never existed in California and that the forerunner of Penal Code section 1386 recognized rather than caused its nonexistence. Briefly stated, Justice Schauer's argument was that the common law power of nolle prosequi was not part of that Mexican law which was retained by the 1849 Constitution--thereby becoming the law of California, that the adoption of the common law in 1850 was qualified by the rejection of that which was inconsistent with such California law, and that the nonexistence of the power of nolle prosequi was codified by the 1850 forerunner of section 1386 prior to legislation in the same year repealing all law not adopted by the Legislature.

Justice Schauer contended, however, that the dominant question was whether the power to dismiss a prior is an essential part of the judicial power today, since the framers could not have anticipated the drastic changes in the effects of prior convictions. Because of the seriousness and extent of such effects on punishment and rehabilitation, because of recognition--implied in statutes and express in decisional authority--that the judicial power must include the power to control a cause, and because section 11718 itself implies the existence of the judicial power to grant a motion to strike priors (albeit on the prosecutor's motion only), Justice Schauer concluded that the power to strike priors is an essential part of the judicial power. He concluded further that section 11718 constituted an invasion of that power because it grants to the prosecutor the unreviewable power to grant or to prevent a judicial resolution of a motion to strike priors, and because 'Constitutional jurisdiction of the court to act cannot be turned on and off at the whimsy of either the district attorney or the Legislature. The power to act under our system of government means the power of an independent court to exercise its judicial discretion, not to servilely wait on the pleasure of the executive.' (58 Cal.2d at p. 654, 25 Cal.Rptr. at p. 703, 375 P.2d at p. 647.)

Justice Schauer set out the various habitual narcotics offender statutes, noted that striking a prior for the most part would have the effect of permitting the Adult Authority to release an offender earlier than were the prior retained, but would not compel such a release (as the Adult Authority under many of the statutes can retain the offender for life in its discretion regardless of the existence of a prior), and that a mandatory minimum term works at cross purposes with indeterminate sentences. He also argued that the absolute discretion which section 11718 vests in the prosecutor to permit or deny a defendant an opportunity to obtain an order striking priors denies that defendant due process and equal protection.

It is clear, however, that Justice Schauer was primarily concerned with separation of powers: He viewed Sidener as 'a step toward totalitarian concerntration of power in the executive; a power to be exercised without any legislative standard and without possibility of judicial review.' (58 Cal.2d at p. 673, 25 Cal.Rptr. at p. 715, 375 P.2d at p. 659.)

Justice White agreed with Justice Schauer, but added a brief...

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